R v Nelson

[2002] NSWCCA 463

CITATION:	R v Nelson [2002] NSWCCA 463
FILE NUMBER(S):	CCA 60912/01
HEARING DATE(S):	13/11/02
JUDGMENT DATE:	13 November 2002
PARTIES :	Regina Stephen Brian Nelson
JUDGMENT OF:	Wood CJ at CL at 1; Dowd J at 40; Bell J at 41

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	01/31/0213
LOWER COURT JUDICIAL OFFICER :	Christie DCJ

COUNSEL :	P Power (Crown) H K Dhanji (Applicant)
SOLICITORS:	S E O'Connor (Crown) D J Humphreys
CATCHWORDS:	CRIMINAL LAW - appeal against severity of sentence - Robbery while armed with a dangerous weapon - Form 1 offences - break enter and steal - steal motor vehicle - possession of cannabis leaf - appeal allowed.
LEGISLATION CITED:	Mental Health Act 1990
CASES CITED:	Regina v Anderson (1981) VR 155 Regina v Bavadra (2000) 115 A Crim R 152 Regina v Fahda [1999] NSWCCA 267 Regina v Harris (2001) 125 A Crim R 27 Regina v Jenkins [1999] NSWCCA 110 Regina v Kay [2002] NSWCCA 286 Regina v Letteri NSWCCA 18 March 1992 Regina v Scognamiglio (1991) 56 A Crim R 81 Regina v Wright (1997) 93 A Crim R 48
DECISION:	Leave to appeal granted. Appeal allowed; sentence below quashed. In lieu thereof the applicant is sentenced, for the offence of robbery while armed with a dangerous weapon, taking into account the matters on the form 1, to imprisonment for five years to date from 3 June 2001. Non parole period of three years and four months set, to date from 3 June 2001 and to expire on 2 October 2004. 2 October 2004 is the earliest possible date of release on parole.

- 9 -IN THE COURT OF

60912/01

WOOD CJ at CL
DOWD J
BELL J

Wednesday 13 November 2002

Regina v Stephen Brian Nelson

Judgment

1 WOOD CJ at CL: The applicant seeks leave to appeal against the sentence imposed upon him by his Honour Judge Christie in the District Court, on 21 May 2001, following his plea of guilty to one count of robbery whilst armed with a dangerous weapon. Three further offences were taken into account on a form 1 comprising offences of break enter and steal, steal motor vehicle and possession of cannabis leaf.

2 All 4 offences had been committed on the same day, and the applicant’s plea of guilty was accepted as having been given at the first available opportunity.

3 The sentence imposed was one of imprisonment for six years with a non parole period of four years, in each case backdated to the date on which the applicant was taken into custody.

4 The outbreak of criminality which brought the applicant before the Court commenced in the early hours of 3 June. The applicant first broke into residential premises at Gloucester which were occupied by his estranged wife and her friend.

5 Once inside those premises he stole cash in an amount of $50 and a credit card and also took the key to a Ford Telstar motor vehicle. Using that key, he took and drove the vehicle to the Krambach Hotel where the robbery occurred. He left inside his vehicle three bags of cannabis leaf with a gross weight of 74 grams. These were the three matters taken into account on the form 1.

6 Having arrived at the hotel, shortly after 7 am, the applicant who was wearing a black balaclava knocked on a window. Albert Betts, the father and father-in-law respectively of the operators of the hotel, went to the door to open it. He was confronted by the applicant who pointed a double barrelled shotgun towards him. Mr Betts pushed the weapon away and called for help from his son and daughter-in-law. The applicant told him to be quiet and instructed him to give him the money in the hotel, otherwise he would be shot.

7 Mr Betts somewhat courageously took hold of the prisoner’s leg and wrestled him to the ground. His son arrived soon after, and together they managed to subdue the applicant who was in due course taken into police custody. The firearm was found to contain two live rounds. A box of ammunition was found in the car, which had been parked outside with its engine running.

8 The applicant was seen to be significantly affected by alcohol, and was given until 1.45 pm to sober up and was provided with a meal before he was interviewed. He claimed, at that point, not to be able to recall the events of that morning, either at his estranged wife’s house or at the hotel other than in a very confused and blurred way.

9 He disclosed having been on anti-depressants and he also acknowledged that, contrary to medical advice, he had been drinking beer and Tequila during the preceding night. It is also probable that he had been drinking Bourbon in the early hours of the morning of the offence, as a partially empty Bourbon bottle was found in the car.

10 It was accepted that he had no prior record of any moment and that, following the separation from his wife in 1998, he had become depressed and had begun to drunk heavily, leading to the loss of his job as an operator of heavy earth moving equipment. He received psychiatric treatment, including electro convulsive therapy and, in the year 2000, he had been admitted at one stage to a psychiatric hospital after becoming suicidal.

11 Additionally there was evidence that, in April 2001, he had become exposed to a particularly traumatic event when he had been called by the husband of a close friend, who had just been murdered by that man, to the scene of the crime. When he arrived there, with some other men, he observed the body of the deceased, in a condition suggesting that she had been severely bashed. He was confronted by the killer, with requests that they kill him. Thereafter it became necessary for him to wait with the body, and with the killer, until police arrived.

12 There was evidence that a psychiatrist, Dr Robinson, who had been treating him for his earlier problems found him to be severely depressed with suicidal thoughts, and with signs with post traumatic stress disorder, following this event. The applicant apparently had increased his intake of alcohol, cannabis, amphetamines and anti-depressants, in attempts to block out the memories of it. He became severely sleep deprived and Dr Robinson had counselled him, shortly before the current offences, as to the need to moderate, if not to stop his drinking. Advice to which he most unwisely responded by going on a bender.

13 Dr Robinson next saw him on 9 July 2001, following the current offences, at which time he thought him to have been “suffering at the time of the offence extreme depression with suicidality and visual hallucinations, probably from a toxic state caused by his multiple prescribed and illicit drugs”. In this regard, he noted that the applicant had not slept for several days, and had extensive alcohol and marijuana in his system.

14 Dr White, another consulting psychiatrist who saw the applicant after his arrest, formed an opinion, upon the basis of his examination and a reading of Dr Robinson’s reports, that, at the time of the offence, he had been

“ So disturbed and so depressed that his mind was divorced or disassociated from reality ”.

This state he attributed to the combination of his profound intoxication, with a recognised and diagnosable major depression from which he had been suffering.

15 It was submitted that his Honour, when sentencing the applicant, had given insufficient weight to his mental state. In relation to this aspect of the case his Honour noted the traumatic event to which the applicant had been exposed, and observed that the condition of the applicant was one which he would accept, “without the slightest demur, was one that caused him considerable distress and continued to do so”.

16 Later, in the reasons for sentence, his Honour said,

“I need to take into account also that the prisoner is said to have been and possibly still is to some extent in a state of emotional turmoil. Certainly at the time of this offence I am entitled to accept that he was. He was dysfunctional I think was the word used by reason of some substance abuse, by reason of alcohol intake, by reason of the emotional turmoil said to have followed upon the events in April of that year to which I have made earlier reference.
Absent those circumstances and for a crime of this seriousness and objectively, this crime is as serious a one as one would wish to see. Absent those sorts of matters I would think that the community would need to consider the calculation of this man’s sentence as commencing somewhere around ten years imprisonment.”

17 Later, his Honour said:

“But having regard to the earlier events in April which I think must be taken to have had some effect on his emotional stability, if nothing else in regard to the commission of this crime, I think I would be entitled to consider a sentence of somewhere approximating eight years”.

18 His Honour then discounted this figure by twenty-five per cent, so as to allow for the plea of guilty. Special circumstances were found referable to the fact that the applicant had not previously been to gaol, that he had a good prior record and that his prospects for rehabilitation must be considered to be good.

19 It was not asserted that the mental state of the applicant, at the time of the offences, was such as to give rise to a McNaughten defence. Nor was it asserted that it was such at the time of entering his plea, and appearing for sentence, as to raise any question of his fitness to plead.

20 The expert psychiatric evidence placed before his Honour shows beyond question that, prior to the offences, the applicant had consumed alcohol and cannabis in a manner, and to an extent, that was entirely inappropriate for a person who was using prescription medication for depression, and for a condition of post traumatic stress disorder. Clearly that fact was the trigger for these offences.

21 Additionally, as his Honour found, there necessarily was some degree of planning involved, on his part, insofar as he prepared for the armed robbery by obtaining a balaclava, a shotgun and ammunition, by loading the shotgun and by stealing a motor vehicle in order to drive to the hotel.

22 To the extent that the condition of the applicant was self induced, through his abuse of alcohol and drugs, this case differs from one where the mental disturbance of an offender was due purely to an underlying abnormality of mind.

23 So far as each of the psychiatrists came to the conclusion that at the time of the offences the applicant’s state was such as to qualify as a “mental illness” within the meaning of the Mental Health Act 1990, they seem not to have appreciated the important distinction, long recognised in the law, concerning the extent to which a disability of mind is induced by the abuse of alcohol or drugs.

24 In those circumstances, while it was entirely appropriate for his Honour to have taken into account the mitigating circumstances referrable to the underlying abnormality of mind, and in particular the stressors which had led to his depression and post traumatic stress disorder, which had then turned him towards substance abuse, I am of the view that this aspect of the case was appropriate taken into account in the passages extracted from the judgement.

25 Apart from submitting that his Honour had understated the effect of the applicant’s mental state, it was also submitted that his Honour erred in finding

“ That it is important not only that Stephen Brian Nelson be deterred from further offending in this way but it is important on behalf of the community that other citizens like minded to offend be deterred and it is for that reason that comparatively heavy sentences are passed in connection with armed robberies. Attempted armed robberies are assault with intent to rob, by reason of the prevalence of this type of offence. And the protection of the community is as important a factor. The protection of Mr Betts and his family in particular but the community in general is as important a factor as the rehabilitation of the prisoner ”.

26 While accepting the general correctness of these principles, in the case of offenders who are unaffected by any form of mental illness, the applicant submitted that neither element of deterrence had the same significance in the present case, in view of the applicant’s underlying depressive state and condition of a post traumatic stress disorder.

27 Additionally it was submitted that the absence of any reference, in the reasons for sentence, to the well known decisions concerning the proper approach to questions of deterrence, in the case of offenders with a mental disability, meant that his Honour had overlooked the principles for which they stand, and in that respect had fallen into error.

28 It may be accepted for the reasons identified in Regina v Scognamiglio (1991) 56 A Crim R 81, Regina v Letteri NSWCCA 18 March 1992, Regina v Wright (1997) 93 A Crim R 48 and Regina v Fahda [1999] NSWCCA 267, that general deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality. The reason for that lies in the fact that such an offender is not an appropriate medium for making an example to others. Similarly, the element of personal deterrence may have less significance, because the interests of society do not require persons with a relevant disability to be punished as severely as a person without a disability. Regina v Anderson (1981) VR 155 at 160 to 161. This is but another aspect of the important principle that sentencing is an individual exercise.

29 In the present case, there was some justification for regarding personal deterrence as being of somewhat lesser significance, in the light of the applicant’s background, his problems at the time of the offence and his subsequent forced detoxification, each of which led his Honour to find that his prospects of rehabilitation bordered upon excellent.

30 However, that needed to be tempered by reference to the fact that the sentence imposed had to be one that provided a deterrent against his resumption of any form of substance abuse, particularly bearing in mind the fact that he had totally ignored the strong advice given by his treating psychiatrist to stop drinking.

31 The approach which his Honour took in relation to general deterrence, in the special circumstances of this case, involving as it does somewhat bizarre behaviour by an offender of an otherwise unblemished record, but with an underlying mental state, does raise a concern as to whether that aspect was given undue weight. That concern, in my view, is sufficient for leave to be given to the applicant to appeal.

32 Ultimately the question which arises, in relation to both aspects of the case, merges into the final ground argued by the applicant that, in all of the circumstances of the applicant’s plea, his age of forty-three years, his lack of a prior record of any moment, his mental state and his favourable prospects of rehabilitation, the sentence was manifestly excessive.

33 In support of that proposition reference was made to the sentencing statistics in relation to this offence. On their face, those statistics would tend to suggest, that the starting point was certainly towards the top end of the range. However, as this Court has frequently found cause to observe, within those statistics there is often as much hidden as there is revealed. That relates to the circumstance that they embrace a number of cases, with very different objective and subjective circumstances. That has a relevance, in this case, having regard to the very serious nature of the present offence.

34 Comparison was invited with the case of Regina v Jenkins [1999] NSWCCA 110, one of the cases considered in relation to the guideline judgment concerning armed robbery offences. That case concerned a sixty-two year old applicant, with no prior record, and whose offence was committed on the spur of the moment. Moreover it was one where numerous errors in principle were made by the sentencing Judge, including a misapprehension as to the maximum available penalty, as well as a failure to structure the sentence in accordance with the Act.

35 It was a very different case from the present, where the objective facts were more serious, where there were offences on a form 1, where the applicant was twenty years younger, and where his mental state was due in no small measure to his own fault in continuing to abuse alcohol and cannabis to a significant degree.

36 There was a need for the sentence, in the present case, to reflect the totality of the criminality involved, and in that respect to include an additional penalty in respect of the form 1 offences for the reasons identified in Regina v Bavadra (2000) 115 A Crim R 152, Regina v Harris (2001) 125 A Crim R 27 and Regina v Kay [2002] NSWCCA 286.

37 Having regard to that matter, and also having regard to the very serious nature of the armed robbery, in this case, which placed it objectively, in the very upper range of seriousness for an offence of this kind, I am not persuaded that the case is one where the starting point was inappropriate. However I am persuaded that undue weight was given by his Honour to the question of general deterrence, in the light of subjective circumstances of the applicant, and his favourable prospects of rehabilitation.

38 I would propose, accordingly, that leave to appeal be granted, that the appeal be allowed and that the sentence below be quashed. I propose that in lieu thereof the applicant be sentenced, for the offence of robbery while armed with a dangerous weapon, taking into account the matters on the form 1, to imprisonment for five years to date from 3 June 2001. I would specify a non parole period of three years and four months, to date from 3 June 2001 and to expire on 2 October 2004. Upon that basis the last mentioned date would be the earliest date on which the applicant would be eligible for release on parole.

39 I would maintain the same proportion between the non parole period and the head sentence as his Honour did, being satisfied for the reasons which he identified, that this was the case where special circumstances were demonstrated.

40 DOWD J: I agree.

41 BELL J: I also agree.

42 WOOD CJ AT CL: The orders of the Court will therefore be as I proposed.

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